“Syme was not only dead, he was abolished, an unperson.”

All judges are activist

Predictably, Sen. Orrin Hatch (R-Ut.) responded to the news of John Paul Stevens’ retirement by demanding that the President’s nominee not be an “activist judge.”

This will no doubt be a rallying cry for right-wingers during the summer confirmation arguments, but it is a tautology, plain and simple.

All judges are activist for the judicial ideology they believe in. There is simply no way to separate a judge’s life experience and political ideology from his or her decisions on the bench. Hatch states that activist judges are unfit for the federal bench, but this seems a fairly new phenomenon. Certainly, Truman considered Earl Warren’s ideological credentials before placing him on the bench, just as Reagan considered Scalia’s.

Justice Roberts may tell us that his job is “calling balls and strikes,” but his actual job is re-writing the size of the strike zone. This necessarily puts judges in a position of activism, with varying degrees of intent in their decisions. Consider Bush v. Gore, the most activist decision in history, which passed on exact ideological lines. Do we really imagine that the 5 right-leaning and 4 left-leaning judges made their decision weighing only the legal merits of the case and not its consequences?

Those incentives have made the legacy of this Court’s “public purpose” test an unhappy one. In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman, cities “rushed to draw plans” for downtown development. […] Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28—29. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks. […] Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.

Thomas’ dissent is not wholly based on the legal interpretation of the Takings Clause of the Fifth Amendment, as he claims. It is, whether he likes it or not, based on an “activism” on behalf of private citizens’ rights vis-a-vis the government’s right to seize property. Why bring up the case of urban renewal at all, if not to advocate for those individuals who were affected by the Supreme Court’s decision? That is to say, to be an activist for them!

And unbelievable as it may seem, the first Democratic President in 8 years will actually move the ideological balance of the court to the right, especially if he picks one of the three “frontrunners” (Kagan, Wood, Garland). The label has been so effective that instead of nominating a liberal lion to replace Stevens, he will inevitably pick another executive-power-loving moderate. The administration may not want a knock-down, drag-out fight over the summer, but Obama had better get used to it.

No matter which judge Obama picks, he/she will be an activist. Why not have an activist for your side for once?

5 Responses

I agree that Obama may move the court to the right, but it’s not that unbelievable. First off, it wouldn’t be by much. And second, unless one of the other five retires, this was always likely to happen. The best we could hope for – and this remains true especially if Ginsberg retires – is that we maintain the status quo where it is. I wonder who President Palin would pick to replace someone?

I would argue, however, that a large part of this is the lack of moral argument by the left. The Left has largely ceded the ground of ethics and morals to the GOP, which is unbelievable. A focus on technocracy led away from the broader ideological frameworks necessary to a national movement.

I would also point out that Stevens was nominated by Gerald Ford, who among other things — pardoned Nixon, thought the Vietnam War failed because of lack of fortitude, and fought tooth and nail against the Great Society. A moderate Republican, sure, but still a party-line Republican who became minority leader. Before his passing, Ford considered Stevens’ nomination one of his best decisions.

I would also point out that Stevens was actually a moderate-conservative on his court (right of Marshall, Brennan, Powell), rather than the member farthest to the left. (Left/Right is all a matter of timing, yada yada). Nevertheless, Stevens himself defines his judicial philosophy as “conservative,” which I feel is an apt description of his jurisprudence.

In sum, Supreme Court Justices on the bench rarely change; the country around them often does. Obama has a chance to help choose a judge along the lines of Stevens, Marshall or Warren. I don’t think he will. Do you?

[…] decide that they should bash Thurgood Marshall, of all people, as an “activist judge” (a term we have discussed before). When pressed, it turns out they had no specific cases or instances of “activism” in […]